Heffernan v. Paterson and an Absurd First Amendment Doctrine

The Supreme Court has a chance to fix an illogical interpretation of the right to free speech.

PHOTOGRAPH BY DHUSS / GETTY

On April 13, 2006, Jeffrey Heffernan, a high-ranking detective in the Paterson, New Jersey, police department, picked up a lawn sign from the Lawrence Spagnola mayoral campaign. Spagnola, a former Paterson police chief, was a friend of Heffernan’s; the incumbent, Jose Torres, was supported by the police chief at the time, James Wittig. Another officer, passing by, saw Heffernan pick up the sign and talk to Spagnola’s campaign manager. When Heffernan went to work the next day, he was told he’d been reassigned to nighttime foot patrol as punishment for supporting Spagnola.

Heffernan sued the city in federal court, claiming that it had violated his First Amendment rights to free speech and free association. This would appear to be a straightforward case: since 1976, the Supreme Court has held that the First Amendment protects non-political public employees, like police officers, from retaliation based on political affiliation. Yet Heffernan lost. He had testified that the sign wasn’t for him; he was picking it up as a favor for his bedridden mother. His punishment, in other words, was based on the mistaken belief that he was expressing support for Spagnola.

The trial judge ruled that because Heffernan didn’t mean to get involved in the campaign, he hadn’t actually exercised any First Amendment right, so he couldn’t bring a First Amendment claim. The Third Circuit affirmed that ruling on appeal. On Tuesday, the case was argued at the Supreme Court, which will decide whether a public employer violates the Constitution when he punishes an employee for something the employee didn’t actually say. (The city denies that Heffernan was reassigned in retaliation for apparently supporting Spagnola, but at this stage in the litigation, it accepts Heffernan’s account for argument’s sake.)

Heffernan argues that the First Amendment not only grants individuals the right to speak freely but also prevents the government from trying to control people’s beliefs. Mark Frost, who represented Heffernan at oral arguments, told me last week, “The First Amendment bars a government supervisor from demoting an employee for the purpose of suppressing political affiliation, whether or not the employee works on the campaign or takes a political position.” He continued, “When the government’s motive is to suppress association and beliefs, then the government should be held accountable.” As Ginger D. Anders, a Justice Department lawyer who also argued on Heffernan’s behalf, put it yesterday, even if Heffernan wasn’t politically active, the city still violated one of his rights: the “right not to have adverse action taken against him by his employer for the unconstitutional purpose of suppressing disfavored political beliefs."

In its briefs, the city has responded that, “by definition, the government cannot ‘abridge’ a ‘right’ of an employee who does not even seek to exercise it.” In other words, if Heffernan did not mean anything by holding the sign, Wittig’s motivation in punishing him is irrelevant under the First Amendment. That argument, however, leads to some weird consequences. As Justice Elena Kagan put it, under the city’s logic, a newly elected Democratic official could “identify every person without a well-known political view, every couch potato out there,” fire them all, and replace them with Democrats. Tom Goldstein, the lawyer representing Paterson, told Justice Kagan she was right. “The Constitution doesn’t fix everything,” he said.

The reason this seems intuitively wrong is that the First Amendment is clearly aimed at preventing government from trying to control or censor political opinions. Justice Kagan, when she was still a law professor, argued, in an influential 1996 law-review article, that most First Amendment doctrine is best explained as a way to root out impermissible government purpose. In the 1992 case R.A.V. v. City of St. Paul, for example, the Court held that a St. Paul, Minnesota, ordinance criminalizing “fighting words” based on race, religion, or gender was unconstitutional because it penalized only certain messages. “The government,” Justice Antonin Scalia wrote, “may not regulate [speech] based on hostility—or favoritism—towards the underlying message expressed.”

As Justice Kagan pointed out, however, fighting words—speech likely to provoke a violent reaction—are never considered speech covered by the First Amendment, so the defendant couldn’t claim to have exercised any First Amendment right. Yet he won anyway. The only explanation for that outcome is that a law can’t have the purpose_ _of singling out particular viewpoints, whether or not the people it affects engaged in any protected activity.

The issue in yesterday’s arguments was whether that’s the right way to interpret the First Amendment. What’s odd, though, is that, based on the facts of this case, that question should really be beside the point. By all accounts, Heffernan was reassigned because of the words on the sign he was carrying and the person he was talking to. He did speak, he did associate, and he was punished for it. His boss may have misinterpreted his intent, but that doesn’t mean his conduct wasn’t protected.

The fact that the lower federal courts came to the opposite conclusion illustrates an underappreciated aspect of First Amendment doctrine: the Supreme Court has said a lot of things about it that can’t possibly be true. And, when judges rely on those statements uncritically, they can reach results that make no sense. Here, the main culprit is a line from a 1974 case, Spence v. Washington, in which the Supreme Court overturned the conviction of a college student for displaying an upside-down American flag, with a peace sign taped over it, to protest the U.S. invasion of Cambodia and the Kent State massacre. Even though his use of the flag wasn’t literally “speech,” the Supreme Court held that it was covered by the First Amendment because “an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Applying that standard to Heffernan’s actions, the lower courts held that his picking up the lawn sign didn’t count as speech, because he didn’t intend to communicate anything by it.

There’s a saying among lawyers that “hard cases make bad law.” Spence proves that, sometimes, easy cases do, too. As Robert Post, the dean of Yale Law School and a leading First Amendment scholar, has written, the Spence criteria “have been used ever since by lower courts to guide their decisions about whether to apply First Amendment protection.” (I took Post’s course on free speech as a law student.) Post continues, “What is curious, however, is that the doctrine is transparently and manifestly false.”

When he says the doctrine is “false,” Post means that it doesn’t actually explain what typically counts as speech under the First Amendment. Many acts that meet all the Spence criteria don’t get First Amendment coverage; hurling a brick through a mosque window, for example, would communicate a pretty strong message. At the same time, plenty of speech that is clearly protected doesn’t pass the Spence test. The Supreme Court itself noted, in a 1995 case, that if a “particularized message” were necessary for First Amendment protection, the government could censor “the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” The “intent” portion of the test leads to equally absurd results: if someone unfamiliar with U.S. politics wore a shirt with a donkey on it, the Spence test would seem to allow the police to arrest him for supporting the Democratic Party, because he couldn’t have intended to communicate that message. Yet the Spence test has never been overruled.

The lower courts dismissed the freedom-of-association claim using the same logic that they did for speech: Heffernan didn’t exercise his right to free association, they held, because he didn’t intend to be identified as part of the Spagnola campaign. That idea is nearly as puzzling as the idea that he didn’t speak. Freedom of association, which protects, for instance, the right to register as a Democrat or Republican, is an extension of the First Amendment’s guarantee of “the right to peaceably assemble.” Yet under Paterson’s theory, any public employee (any citizen, really) could be punished for attending a campaign rally—literally “assembling”—if it turns out he or she was there not to support the candidate but just for the entertainment.

To see how strange the lower court rulings are, imagine if Wittig had told Heffernan, “Look, I know you weren’t trying to support Spagnola. I know you were just doing a favor for your mom. I’m punishing you for helping a Spagnola supporter.” It would be remarkable to say that that’s allowed by the First Amendment. As District Judge Kevin McNulty observed, “From a First Amendment standpoint, Heffernan’s position was not so different from that of the printer who manufactured the sign, or the trucker who delivered the signs to campaign headquarters.” He meant that as support for the claim that Heffernan didn’t exercise his rights, but he could have drawn the opposite conclusion: it surely would be unconstitutional for the state to punish truckers for delivering signs to certain campaigns.

To be clear, the question of whether Heffernan’s carrying the sign was speech or association under the First Amendment is off the table at the Supreme Court. The Justices stressed that they took the case “on the proposition that he wasn’t engaging in speech at all,” as Chief Justice John Roberts put it. But there were hints that they were forcing themselves to suspend disbelief.

“The question in this case seems to me to be highly artificial,” Justice Samuel Alito said at one point. “It’s sort of—it’s like a law-school hypothetical.” He continued, “How often will it be the case that an employee will be unable to allege any expression or any association that is protected by the First Amendment? It seems to me quite rare.”

But Heffernan did_ _allege expression protected by the First Amendment. He lost because two federal courts actually ruled that picking up a political campaign sign doesn’t count as speech under the First Amendment unless you really mean it. By playing along with the fiction that Heffernan didn’t exercise a First Amendment right, the Supreme Court may miss an opportunity to make sure that cases like his really are rare.